2015 labor law update handout · 2018. 11. 8. · 1/19/2015 4 treble (3x) damages for employers who...

1/19/2015

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1800.399.5331www.employers.org

Supporting Employerswith Human Resource solutions since 1937

1. Wage & Hour 2. Cal OSHA3. Harassment & Discrimination4. Potpourri 5. Questions6. Paid Sick Leave7. Recap and Questions

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An Overview of New Laws for 2015

www.employers.org 800.399.5331


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CEA – California Employers Association• Over 75 years of HR support for employers• On-site, training, compliance, HR Hotline• Subject Matter Experts

Consult an attorney about any issues of legal significance to you.

This presentation should not be relied upon as legal advice.

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• AB 241: DOL Update • AB 1897: Staffing Agencies & Labor

Contractors • AB 2074: Liquidated Damages • AB 1723: Waiting Time Penalty• AB 2288: Child Labor Protection Act

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Domestic Workers lawsuits


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• 2014, AB 241 required employers (even private households) who use personal attendants, nannies, housekeepers and private health care aides to pay overtime for more than 9 hours in a workday or 45 hours in a workweek

• Before AB 241 attendants were exempt from overtime

• Law still does not require meal and rest breaks

• January 1, 2015 DOL changed FLSA guidelines. More generous. Overtime for 9 hours in a workday or 40 hours in a workweek for personal attendants


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Holds companies accountable for wage theft and other abuses when they use staffing agencies and labor contractors. (Soex West Textile Recycling story) • Employers now have joint liability for wage and hour laws

and workers’ comp requirements• Does not apply to employers with:

– 25 or fewer employees– 5 or fewer workers from labor contractors working at one time– White collar exempt workers– Collective bargaining agreements (union supported)


• In 2014 the state allowed liquidated/double damages when an employee didn’t receive minimum wage

• 2015 AB 2074 Clarifies that the statute of limitations for liquidated damages is the same as the underlying wage claim

• Example: Wage and hour claims have a 3 year statute of limitations, so do the liquidated damages

• Be careful with those final paychecks


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3 Minimum wage dispute resolutions: – Labor Commissioner Claims– Civil Actions in Court– Labor Commissioner Citations

• In the past, an employee had to file and request waiting time penalties in order to receive them

• Now, the LC can ask for waiting time penalties on behalf of an employee. (Expanded authority)

• Only if there is willful failure to pay less than minimum wage


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Treble (3x) damages for employers who discriminate against a person for filing a LC claim that occurred when the employee was a minor. • The statute of limitations is “tolled”

(suspended) on a minor’s claims until the minor turns 18

• Available whether a claim is filed before or after the age of 18

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• AB 1634: Cal/OSHA• AB 326: Emailing Injuries • New OSHA rules


Removes the option of postponing an abatement period for employers with serious violations. • Prior law allowed employers to contest OSHA

citations – employees were working in unsafe conditions during the investigation period

• Prohibits OSHA appeals board from modifying (or waiving) civil penalties for serious violations until they are fixed

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Amends the Labor Code

• Prior law required an employer to make an immediate report by telephone or telegraphof every case involving an employee's serious injury or illness or death to the division

• AB326 requires every employer to make an immediate report by telephone or e-mail of every case involving an employee's serious injury or illness or death to the Division of Occupational Safety and Health


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• As of 1/1/15 employers must notify OSHA within eight (8) hours when an employee is killed on the job.

• Must notify OSHA within 24 hours if an employee suffers a work-related hospitalization, amputation or loss of an eye

• Bakeries, auto dealers, liquor stores, and museums must now track on the job injuries

29 CFR Part 1904 14

• AB 1443: FEHA protection for Interns and Volunteers

• AB 1660: CA New Drivers License• AB 2751: Unfair Immigration Practices

and Penalties• AB 2053: “Abusive Conduct” training • AB 802 & AB 2617: Arbitration Changes


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Expands FEHA protection against discrimination and harassment to unpaid interns and volunteers• No discrimination in the selection, termination,

training, or other treatment of unpaid interns and volunteers

• Does not change the rules regarding the very limited exceptions for unpaid interns*

*CEA Factsheet

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AB 60, 2013, Required DMV to issue driver licenses to applicants who are unable to submit satisfactory proof of legal presence in the U.S.

• Applicants must meet all other qualifications for licensure and proof of identity in California

• Employers cannot discriminate against these individuals and they are not valid documentation for I-9’s

• Be careful about documentation on I-9’s. Can only require drivers licenses if required by job

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• (Front) “Federal Limits Apply”

• (Back) “Not valid for official federal purposes.”

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Current law prohibits an employer from retaliating against an employee who files with DLSE. 10k/violation This Code: 1. Clarifies that the fines go to the employee2. Prohibits adverse action when an employee updates

personal information based on “a lawful change of name, social security number or federal employment authorization document”

3. Authorizes victims who are threatened to bring civil actions


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AB 1825 required employers with 50 or more employees to provide 2 hours of sexual harassment prevention training to all supervisors. • AB 2053 adds an “abusive conduct” training component

to AB 1825

• “Action taken, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests…” CEA’s trainings are up to date!

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AB 2617: Employers can’t require employees to sign a mandatory arbitration agreement that waives their right to sue for violence or hate crimes. AB 802: Requires transparency in arbitration. Requires posting of sensitive information including the amount of the award.• These laws are broad and reduce confidentiality – Make

arbitration less attractive for employers

• Talk with legal counsel regarding handbooks!

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• Minimum Wage Increases• NLRB Ruling• Mileage Reimbursements• SF Fair Chance Ordinance• AB1650 Fair Chance Employment Act• 2015 Posters • Cell Phones


• 1/1/15 San Francisco $11.05 ($12.25 on May 1, 2015)

• Oakland $12.25 on March 2, 2015

• Reminder: California’s minimum wage of $9/hr. (7/1/14) will increase to $10/hr. 1/1/16

• Current California exemption salary test is $37,700. Will be $41,600 on 1/1/16

• Exempt employees must meet new minimum wage laws


• Dec 2014 ruled that employees who have access to an employer’s email system as a part of the job may use the email (during non working hours) to communicate about wages, hours, working conditions, and union issues. Purple Communications

• Expected to be challenged in federal courts


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As of 1/1/15 the standard mileage rates for the use of a car, van, pickup truck or panel truck will be:• Business Related Travel: 57.5 cents/mile (up

from last year)• Medical or Moving Purposes: 23 cents/mile

(down half a cent)• Charitable Use: 14 cents/mile (no change)


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• August 2014: Restrictions on job advertisements• No questions regarding conviction history on job

applications (until live interview or unconditional job offer)

• Employers must provide FCO notice (8/14)• Employer must conduct “individualized assessment” if an

employment decision will be made on unresolved arrest or conviction history

http://sfgsa.org


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State contractors may not ask about conviction history in initial hiring process of construction workers

• Employer can’t ask applicant for construction-related employment to disclose information concerning the conviction history of the applicant at the time of an initial employment application

• Exempt for union positions, or those which required by state or federal law to conduct a history background check, or to any contract position with a criminal justice agency


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üAre your 2015 posters displayed in a prominent place? üHave you filled in the blanks?üHave you posted your IWC wage orders?

2015 changes:• Paid Sick Leave• Changes to Cal/OSHACEA’s Poster Guarantee Program will automatically provide you with a replacement when mandatory changes are made!


Cochran v. Schwan’s Home Service, Inc.

• Employer must reimburse an employee who uses personal cell phone for work related calls

• Must pay a “reasonable percentage” of an employee’s phone bill, even if the employee did not incur any additional expenseLC2802(a) An employer shall indemnify his or her employee for all

necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her

obedience to the directions of the employer…

• Review your cell phone policies


• SB 1034: Waiting Requirements for ACA• AB 2536: Time off for Emergency Duty• AB 1522: Mandatory Paid Sick Leave


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• Employers may not apply a waiting period that exceeds 90 days after the start of employment.

• Consider a 60 day waiting period

• Review employee handbooks


• Expands definition of “emergency rescue personnel” to include employees who are officers, employees or members of a disaster response entity sponsored by the state

• Health care providers must notify employer• Do you need to update your handbook?


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California’s New Paid Sick LeaveLaw – AB 1522

Healthy Workplaces, Healthy Families Act of 2014

• Purpose – 3 days off for all employees– To address their own health needs and health needs

of their families• Protect employees from losing their jobs when

they use sick days


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• Who the law impacts• When the law goes into effect• What the law mandates• What you need to do• Some options


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All employers!“Any person employing another under

any appointment or contract of hire and includes state, political subdivisions of

the state, and municipalities.”


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All employees who work in California for 30 or more days within a year of beginning

employment

With some exceptions . . .


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All employees except:• Those covered by a collective bargaining

agreement (CBA) that provides for paid sick days, binding arbitration and other requirements

• Construction employees under a CBA• Providers of in-home services under California law

(not private)• Certain air carrier and flight personnel provided

time off equal to the law


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• Full-time, Part-time• Exempt, Non-Exempt• Seasonal, Temporary, On-Call• Outside Salespersons• Paid Interns/Externs• Even out-of-state employees


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January 1, 2015• Poster – Labor Commissioner• Wage Theft Notice to nonexempt employees

July 1, 2015• Begin providing paid sick leave benefit• Recordkeeping


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1. Accrual Method2. Annual Grant Alternative (lump sum)3. Employer Policy


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• Beginning 7/1/15 or 1st day of work if later• Employees earn 1 hour paid sick leave for every 30

hours worked (train example)• All hours worked – including overtime. (not holidays) • Exempt employees assumed as 40 hours/week• May cap at maximum of 48 hours or 6 days• Accrued, unused time carried over to following year – no

use-it or lose-it policy• Not paid out at termination


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• Lump sum / front loading / annual grant plan • Employer grants at least 3 days or 24 hours of

paid sick leave at beginning of each year• No accrual or carryover required• No tracking of hours by employer


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• PTO policy so long as it: – Mirrors the accrual, carryover and use

requirements in AB 1522, or– Provides employees with at least 3 days or 24

hours of paid sick leave each year, regardless of the actual accrual rate


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• No later than 90th day of employment• Employee determines how much time to use• Can limit use to increments of 2 hours (or less)• Can limit use to 3 days or 24 hours per year• Can require reasonable advance notice• Law is silent on medical certification• Cannot require employee to find replacement


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• The diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s “family member”

• For an employee who is a victim of domestic violence, sexual assault, or stalking, to seek aid, treatment, or related assistance


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Includes:• Child

– Biological, adopted, or foster child

– Stepchild– Legal ward– Child to whom employee

stands in loco parentis• Regardless of age

or dependency status

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• Parent– Biological, adoptive or foster parent– Step parent– Legal Guardian of employee or

employee’s spouse or registered domestic partner

– Person who stood in loco parentis to the employee when employee was a minor child

• Spouse or registered domestic partner

• Grandparent/Grandchild/Sibling

Newly defined term – broader than FMLA/CFRA

• Same wage rate as earned during regular hours• Different wage rates in preceding 90 days:

– “Divide employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay period of the prior 90 days of employment.”

• Must pay no later than payday for the next regular payroll period after the sick leave is taken


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If an employee separates (leaves the company) and is rehired within 1 year of separation you must restore the accrued

and unused sick leave.


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• Don’t deny right to use accrued paid sick leave

• Don’t threaten to demote, discipline, suspend, or terminate employee who requests or uses accrued paid sick leave


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Keep records for 3 years that document:– Hours worked (not new)– Paid sick leave accrued and used; and– Advancement of sick days if you allow


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• Failure to post poster– $100 per offense

• Unlawful withholding of sick days– $ amount of paid sick days withheld x 3

• Harm to employee– $50/day

• Civil action– $$$


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Remember Option 3. Not required to provide additional paid sick leave if existing paid leave or PTO policy:• Meets accrual, carryover and use requirements of law; or• Provides at least 3 days or 24 hours of paid sick leave

(or equivalent paid leave or PTO) per year of employment, calendar year, or 12 month basis

• And makes the paid leave available for the same purposes and under the same conditions as in the law.


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• Check accrual rates• Check eligibility requirements• Check reasons for use requirements• Define “family member”• Revise pay calculation


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• Must follow the law that provides more generous rights

• San Francisco (February 2007)– More generous on amount of leave– California law more generous on rehire provisions– Comparison of laws: http://californiaemploymentlaw.foxrothschild.com/wp-

content/uploads/sites/9/2014/10/Comparing-Paid-Sick-Leave-Requirements_-San-Francisco-v-California.pdf.


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• Don’t change anything yet• Use this information as education• CEA Webinar on February 4, 2015• Think about what you want to do• Wait for direction from our legal counsel

– We’ll let you know!!


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• Post the Paid Sick Leave poster – http://www.dir.ca.gov/DLSE/Publications/Paid_Sick_Days_Poster_Temp

late_(11_2014).pdf

• Begin using new Wage Theft Notice now – http://www.dir.ca.gov/DLSE/Publications/LC_2810.5_Notice_(Revised-

11_2014).pdf

• Review your record retention polices and update if required

• Decide whether to update pay stub statements or provide separate notice every payday

• Train managers and supervisorswww.employers.org

800.399.533157

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The following applies to the employee identified on this notice:□ 1. Accrues paid sick leave only pursuant to the minimum requirements stated in Labor Code §245 et seq. with no other employer policy providing additional or different terms for accrual and use of paid sick leave. (Accrual method)

□ 2. Accrues paid sick leave pursuant to the employer’s policy which satisfies or exceeds the accrual, carryover, and use requirements of Labor Code §246.(accrual +)

□ 3. Employer provides no less than 24 hours (or 3 days) of paid sick leave at the beginning of each 12-month period. (lump sum)

□ 4. The employee is exempt from paid sick leave protection by Labor Code §245.5. (State exemption and specific subsection for exemption)

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• Determine who needs AB1825 Harassment Awareness training – schedule the training

• Discuss Paid Sick Leave Options – 2/4/15 webinar

• Review your employee handbook: – AB 2536 – Emergency Duty Leave– AB 1522 – Paid Sick Leave– Email Policies– AB 1443 – Unpaid Interns and Volunteers – Arbitration – consider removing– SB 1034 – Waiting periods for Health Care– SB 1360 – Recovery “cool down” periods

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2015 labor law update handout · 2018. 11. 8. · 1/19/2015 4 treble (3x) damages for employers who...

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